s next problem after FTA ratification: trade lawyers
25 November 2011
Korea’s Office of the Minister for Trade recently attempted to recruit lawyers specializing in international trade before the effectuation of the free trade agreement with the European Union.
Under the agreement, the governments of the two economies were supposed to recommend five candidates –- five by Korea, another five by the EU, and another five from a third party that jointly recommended both sides. The office had tried to hire five lawyers through a recruit advertisement in June but failed and had to settle for five trade professors.
“It was a bitter experience to fail to find an eligible trade lawyer in the age of free trade,” a senior official at the trade ministers office said, adding, “I could understand from the bottom of my heart Yi Yulgok’s call for raising 100,000 troops,” referring to a 15th-century Confucian scholar who urged his king to form troops to prepare for an expected invasion by Japan.
Korea has secured 61 percent of the world’s economic territories as free trade zones with agreements with the EU and the U.S., but critics say Korea lacks a sufficient number of lawyers with expertise in trade law. The spread of unfounded rumors against the accord with the U.S. partly related to the lack of trade law experts with extensive experience in handling trade disputes.
○ Lack of lawyers with expertise in int
Finding a lawyer in Korea with expertise in international trade is tough. The Korean government has had 26 trade disputes under the World Trade Organization since 1997, beginning with one on Koreas lower alcohol tax on the traditional distilled alcoholic beverage soju than that on Western liquor. Each time, the government had to hire foreign law firms to deal with the litigation.
“Domestic lawyers are not competent enough and unable to break the language barrier,” said Lee Seong-ho, a trade lawyer at the Office of the Minister for Trade. “We cannot hire a lawyer without proven experience in international trade disputes to handle a matter of national interest.”
Opponents of the Korea-U.S. free trade agreement warned that the investor-state dispute settlement system would be “poisonous” to Korea. They claimed that Korea would lose every related lawsuit due to lack of trade experts. Eight Korean mediators are registered with the International Center for Settlement of Investment Disputes under the World Bank, but none of them have taken part in lawsuits.
While the government says Korea has never been sued in a case pertaining to the investor-state dispute system, Shin Hee-taek, a law professor at Seoul National University who is one of the eight Korean mediators, said, “Unlike other advanced countries with plenty of renowned lawyers, there is very rare experience of (trade-related) litigation in Asia perhaps because of few lawyers specializing in international investment.”
Though professors specializing in international trade are filling part of the gaps created by the shortage of trade lawyers, the number is far short of that needed. Korea has 22 panel members of the World Trade Organization who can be called trade experts, but four are officials of the Foreign Affairs and Trade Ministry and the other seven are university professors.
A few of the professors have lawyer certifications, but none of them are practitioners.
○ Cultivation of trade experts urged
“Experts are fostered through experience but the Korean government does not have the mindset for cultivating them,” said Kim Du-shik, the lead attorney of Sejong Law Firm who participated in a 6 trillion won (5.20 billion U.S. dollars) lawsuit filed by the EU against Korean shipbuilders over the government’s subsidization of the Korean shipbuilding industry.
Many experts say the Korean government has been unable to deal effectively with groundless rumors against the free trade agreements with the U.S. and the EU because of the lack of trade experts. Even as a former minister and opposition lawmakers made unfounded arguments against the accord with the U.S., the government failed to logically respond with accurate logic, eventually letting the rumors to be exaggerated and spread to cause a public outcry.